I. INTRODUCTION The legal order of the European Union confers genuine rights of supranational origin on citizens. The direct effect of Community law can be deduced from former Article 189 of the EC Treaty, which provides that regulations adopted by the institutions are directly applicable in all Member States. This principle is reinforced by the Van Gend en Loos and Costa rulings2. However, its effectiveness largely depends on the quality of the solutions within national legal systems to ensure the respective protections. In other words, in contentious matters, the legal system established by the Treaties essentially rests on a model of indirect administration, in which national bodies—in this case, the courts— play a central role in interpreting and applying the rules emanating from European bodies3. Indeed, in the early decades of the Community project, it was understood that, in the absence of EEC procedural rules, Member States were free to establish their own systems. At that stage, EU procedural law was practically non-existent: apart from the Brussels Convention of 1968 on jurisdiction and the recognition of judgments in civil and commercial matters and the Luxembourg Protocol of 1971 (which conferred interpretative competence on the Court of Justice, effectively integrating the Convention into EU law), there were few relevant provisions, and the profound changes that would occur from the turn of the millennium onwards were not foreseen. 2 It was the Court of Justice’s famous judgments in Van Gend en Loos (5 February 1963) and Costa v. ENEL the following year that, departing from the then-traditional solution in international law – except in exceptional circumstances, individuals cannot directly benefit from the advantages conferred on them by certain treaties – established this as a fundamental principle of the Community legal order. A then-bold interpretation, occurring in the early years of the Treaty of Rome’s application, had significant consequences for the functioning of the Community legal system. The Van Gend en Loos case (Case 26/62) is a landmark judgment of the Court of Justice, affirming the principle of the direct effect of EU law: certain provisions of the Treaty, if sufficiently clear and unconditional, can be invoked directly by individuals before national courts without the need for a national transposition act. This doctrine distinguishes Union law from “classic” international treaties, whose internal application normally depends on national constitutional rules. From Van Gend en Loos onwards, national courts have been obliged to apply EU law directly where it meets these requirements, thereby transforming them into “European courts” for the purpose of protecting rights conferred by Union law. In Costa v. ENEL (Case 6/64), the Court held that Community law (now EU law) prevails over national law: national courts, when judging cases within their jurisdiction, must fully apply Union law and protect the rights it confers on individuals. To do so, they must disregard any conflicting domestic law, whether it pre-dates or post-dates European law. 3 Three levels of application of EU law are distinguished: (1) direct application by European institutions, where there is no room for national law and Member States have no procedural autonomy (the Commission directly applies Articles 101 and 102 TFEU, investigating companies, carrying out dawn raids, declaring anti-competitive practices, or directly imposing fines on companies); (2) indirect application by Member States, conditioned by the principles of equivalence and effectiveness, which require equal treatment between cases of EU law and purely national law and ensure that national rules do not make the application of Union law impossible or excessively difficult; (3) network administration, as in banking supervision (Single Supervisory Mechanism) and in the regulatory networks for energy and telecommunications, where the boundary between direct and indirect application is blurred, and the Union receives specific intervention powers, including the power to veto national decisions. 28 CARLOS TORRES
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